Title

Authors

Document Type

Article

Publication Date

2012

Publication Title

Buffalo Law Review

Publication Title (Abbreviation)

Buff. L. Rev.

Volume

60

Issue

3

First Page

701

Last Page

747

Abstract

The movement to defund Planned Parenthood has opened a new front in the abortion wars. At the state and national level, anti-abortion organizations have campaigned successfully for new legal limitations on Medicaid or Title X reimbursement for Planned Parenthood. Significantly, legal restrictions reach not only abortion but also other services like contraception and cancer screenings. North Carolina, Wisconsin, and Indiana are among the states to have introduced such bans, and the U.S. House of Representatives approved one before the proposal died in the Senate in April 2011.

At first, the novelty of the movement seems to lie in its open hostility to contraception. Commentators have long suggested that the abortion debate truly concerns views about sex equality, motherhood, and non-marital, non-reproductive sex. At last, it seems, those issues have come to the fore. However, as this Article shows, the defunding movement has succeeded partly by deemphasizing the issue of contraception. Instead, in its current incarnation, the movement represents itself as an effort to redefine and expand the limits on the abortion right set forth in the United States Supreme Court’s 1980 decision in Harris v. McRae, the case that upheld the Hyde Amendment, a ban on the use of federal Medicaid funds for abortion services. Harris drew heavily on the idea that abortion was a negative right, a freedom from state meddling. Harris further established that the state had no duty to help a woman effectuate that right. Since 1980, the Supreme Court has continued to uphold bans on the use of public facilities or moneys for abortion. However, the defunding movement is working to reinvent Harris.

The movement first seeks to expand the principle that abortion rights protect only against state interference. Statutorily and constitutionally, the movement stands for the idea that, under Harris, the state can refuse funds not only for abortion but also for other medical services offered by abortion providers. The defunding movement works to expand what anti-abortion activists call the fungibility principle: the idea that money offered to any abortion provider for any service offsets other expenses, frees up funds for abortion, and thus constitutes money for abortion.

More importantly, the movement works to make the issue of funding one about sex equality and sexuality as much as about money. Why should Planned Parenthood be denied funding? In the political arena and in the courts, the movement’s answer has been that women—and especially poor women of color—require protection. The defunding movement, however, offers women-protective arguments that differ considerably from those articulated in Gonzales v. Carhart, the Supreme Court’s recent partial-birth abortion decision.

Carhart has come to stand for the claim that abortion restrictions justifiably protect women from the psychological harms they will suffer as the result of regretting an abortion decision. By contrast, the defunding movement draws on longstanding feminist anxieties about the power dynamics of heterosexual sexual relationships. Since the 1970s, some feminist theorists have problematized the relationship between sexual liberation, rape, and abortion. If women still remain subordinate to men, then abortion services may facilitate women’s sexual exploitation rather than their sexual liberation. As the Article demonstrates, the defunding movement reworks this kind of argument, playing on anxieties about consent and sexual coercion, arguing that Planned Parenthood aids and abets men who use women for sex by removing pregnancy as a consequence of wrongdoing.

The defunding movement deserves study not only because of the challenges it poses to conventional political arguments about abortion. The movement’s use of litigation also offers important insight into the promise and limits of litigation for abortion opponents and grassroots activists more generally. As we shall see, the defunding movement has had to translate its claims and worries into cognizable constitutional and statutory arguments, in the process, downplaying some of the most novel and powerful contentions that the movement has advanced. At the same time, in working within legal constraints, the defunding movement has identified and reworked an important part of the anti-abortion constitutional agenda: establishing that providers have no meaningful stake in the abortion right.

The Article proceeds in three Parts. Part I situates the defunding movement in the history of the broader movement to defund the Left. Part II examines the history of the defunding movement. Part III sets forth and evaluates the movement’s legal claims.